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USMC | DRB | 2011_Marine | MD1100494
Original file (MD1100494.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101217
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20080501 - 20080727     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080728     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100121      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 25 D a y ( s )
Education Level:        AFQT: 48
MOS: 3112
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF :

NJP:

- 20091014 :      Article (Unauthorized absence) , 2 specifications
          Specification 1: 0730 , 20090818 failed to report to the rifle range and remained absent until 0800 ,
                           20090909 ( 22 days )
         Specification 2: 1245 , 20090909 absent ed himself from shipping and receiving section and remained
                           absent until 0700 , 20 090916 ( 7 days )
         Awarded: (to E-2) Suspended: FOP

- 20091222 :      Article ( broke restriction by going to the Camp Lejeune MCX while in civilian attire)
         Awarded: Suspended: FOP

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20090507 :       For absence without leave , SNM did not attend the gas chamber and did not report to section until 1400 on 24 Apr 2009.

- 20091014 :       For your recent NJP for violation of UCMJ A rticle 86 .

- 20091222 :       For your recent Company level NJP for violation of UCMJ Article 134 .





Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ GENERAL (UNDER HONORABLE CONDITIONS) ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.
Types of Documents Submitted/reviewed

 Related to Military Service:
         DD 214:            Service/ Medical Record:            Other Records:   

Related to Post-Service Period:
         Employment:               Finances:                 Education/Training:     
         Health/Medical Records:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law

 A . The Marine Corps Separation and Retirement Manual (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 6207, HOMOSEXUAL CONDUCT .
B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       Applicant seeks RE code and discharge upgrade to reenlist in the U. S. Armed Forces.
2.       Applicant contends his discharge was improper/inequitable based solely on a written statement with n o witnesses or other evidence.

Decision

 Date: 20 1 1 0 9 15            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .

Discussion

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant identif ied one decisional issue for the Board ’s consideration . The Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included three 6105 retention counseling warnings and two for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 2 specifications: 0730, 18 Aug 2009 to 0800, 9 Sep 2009, 22 days; and 1245, 9 Sep 2009 to 0700, 16 Sep 2009, 7 days) and Article 134 ( Restriction, breaking, went to CampLejeune MCX in civilian attire while on barracks restriction). The record also revealed a written statement by the Applicant in which he claimed he was a homosexual and had been since high school. Based on the Applicant’s in- service written statement to his chain-of-command that he was a homosexual, which created a rebuttable presumption that he engaged in, or had the propensity to engage in homosexual acts, his command processed him for administrative separation per the requirements contained within the Marine Corps Separation and Retirement Manual (MARCORSEPMAN). The record did not reference nor did it contain results from a commanding officer’s informal inquiry; hence, the Board could not determine what additional statements or other evidence may have been available to the command in determining the appropriate narrative reason and separation code for discharge. When notified of a dministrative separation processing using the procedure on 4 Nov 2009 , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . The Applicant was separated from the Mari ne Corps on 21 Jan 2010 with a General (Under Honorable Conditions) di scharge due to Homosexual Act.

: (Nondecisional) The Applicant seeks an RE code and discharge upgrade to reenlist in the U. S. Armed Forces. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the B oard for Correction of Naval Records can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
: (Decisional) ( ) . The Applicant contends his discharge was improper/inequitable based solely on a written statement with no witnesses or other evidence. T he Applicant’s in-service s tatement to his chain of command that he was a homosexual created a rebuttable presumption that he engaged in, or had the propensity to engage in homosexual acts. Additionally, the records did not contain any documentation to reflect that the Applicant submit ted evidence to rebut this presumption prior to his discharge. Normally, an inquiry is initiated following a service member’s homosexual admission to determine whether the statement is credible and was not made for the purp ose of avoiding further military service . After review of all the available evidence, the Applicant’s Commanding Officer determined his statement to be credible and that the Applicant should be separat ed by reason of homosexual conduct in accordance with the MARCORSEPMAN . Accordingly, and with no evidence in the records to rebut the presumption of regularity prior to his discharge nor substantial, credible evidence submitted by the Applicant to the Board to question the presumption, the Board

found that the Applicant’s discharge was proper and equitable per the orders and directives in effect at the time of his separation; therefore, this issue did not provide a basis for which relief could be granted. Relief denied.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the administrative separation process, the Board found the discharge was proper and equitable. Therefore, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum for additional information.


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. There are veterans organizations such as the American Legion and the Disable d American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.
Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

 Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the BCNR can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.
Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD ): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

 Secretary of the Navy Council of Review Boards
 Attn: Naval Discharge Review Board
 720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

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